ASKED & ANSWERED: Paul Mersino on the 'American Sniper' lawsuit

By Sue

Oakland County Legal News

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By Steve ThorpeLegalNews

The 8th Circuit Court of Appeals recently issued an opinion in the appeal by the Estate of Chris Kyle in a lawsuit brought by Jesse Ventura known as the “American Sniper” lawsuit. Ventura brought a defamation claim against Kyle, the author of “American Sniper,” for comments made in the book. Ventura continued the litigation after Kyle was murdered. Ultimately, Ventura received an award of $500,000 in defamation damages and an additional $1.35 million on an Unjust Enrichment claim from Kyle’s widow and his estate. Butzel Long attorney Paul Mersino drafted an amicus brief in support of Kyle’s estate, arguing that “unjust enrichment” damages are improper in such a suit and that the award should be reversed. Mersino is a member of Butzel Long’s Commercial Litigation Group where he represents public and private companies, both as plaintiff’s and defendant’s attorney. He also handles appeals in the Michigan Court of Appeals, the Michigan Supreme Court, and in federal courts.

Thorpe: Give us a little background on the incident that precipitated this legal process.

Mersino: In the book “American Sniper,” Chris Kyle tells stories of his times in the Navy SEALs serving in Iraq. In one chapter of the book, Kyle tells a story of getting into a fight with a former Navy SEAL. He did not use the former SEAL’s real name in the book, but only referred to him as “Scruff Face.” Kyle wrote that the man said disparaging remarks about the SEALs, about the war in Iraq, and about America, and said that the SEALs “deserve to lose a few.” Kyle then said that he punched the man, knocking him to the ground. It was only after the book had come out that Kyle was asked in a radio interview whether it was true that “Scruff Face” was really Jesse Ventura, and Kyle said that it was. Jesse Ventura brought a lawsuit, claiming defamation and unjust enrichment, among other things.

After the suit was filed, Chris Kyle was tragically murdered by another former soldier whom Kyle was trying to help. Even after his death, Ventura continued the lawsuit against Chris Kyle’s estate.

After a lengthy trial and a very lengthy deliberation process, a jury awarded Ventura $500,000 on his defamation claim, and the court awarded him $1.35 million on his Unjust Enrichment claim. The case was then appealed to the 8th Circuit Court of Appeals, which reversed both of those judgments, holding them to have been improper.

Thorpe: How did you and your firm get involved?

Mersino: I watched the movie “American Sniper” (based on Kyle’s book) and was moved not only by Kyle’s service during wartime (which was extraordinary), but also by the struggles that he and his family had back home. While he was at war, his wife was always without a husband, his children were constantly without their father, and it was difficult for Kyle (as with many soldiers) to adapt back to “real life” when he got back home. At the end of the movie, Kyle and his family were finally reunited. His wife had her husband back, his children finally had their father, and Kyle was happy to be back home and was helping other soldiers who were suffering from PTSD and other issues. It should have been a storybook ending. But then the movie ended on an ominous note as Kyle headed out with a former soldier he was trying to help. Words then enter the screen stating that Kyle was murdered by that man, and the movie ends with real life footage of a beautiful but saddening funeral memorial scene.

I was so upset and saddened by what had happened to this family; not just Chris Kyle, but his wife and children as well. This man served his country during four tours in some of the worst warzones and survived, only to be cut down at home by someone he was trying to help. And Kyle’s family had finally gotten their husband and father back, only to have him stolen from them. Then, reading more about the matter, I learned that Jesse Ventura not only sued Chris Kyle, but even continued the lawsuit against his estate (i.e., his widow and children) and had been awarded millions of dollars. The case was just being appealed at that time.

As with many, I found myself at one of those moments thinking: “I wish there was something I could do.” Then, I realized, maybe there is. I am an attorney and this was a lawsuit. Maybe I could help. Ultimately I wrote an Amicus Curiae brief, also known as a “friend of the court” brief, raising arguments in support of Kyle’s estate and on behalf of advocates of free speech in general. It was also a great joy for me because I worked on this brief along with my amazing wife, Erin Mersino, a constitutional attorney. Together, we drafted and filed a brief arguing that the $1.35 million award should be thrown out because Unjust Enrichment damages are simply improper in a defamation claim.

Thorpe: Many of the questions in this case involve insurance. Tell us about that.

Mersino: The $500,000 defamation claim was overturned by the Court of Appeals because, during the trial and at closing argument, Ventura’s attorney argued to the jury that because Chris Kyle may have had an insurance policy on his behalf that would cover him against any claims of defamation, that it was not really Kyle’s estate that would be harmed but rather the insurance company who “would be on the hook.” Generally speaking, other than in certain circumstances, it is forbidden to raise the issue of an insurance company having to pay a judgment because that information could be prejudicial to the jury. The jury could think there is no harm in awarding a judgment, because a big insurance company might have to pay the money and nobody would be harmed.

The Court of Appeals held that telling the jury that the insurance company would be “on the hook” “prevented Kyle from receiving a fair trial.” The Court of Appeals ruled that the defamation award should be reversed and that claim should be re-tried to a new jury.

Thorpe: How might this opinion influence any new trial?

Mersino: In theory, a new trial would be held with a new jury, the issue of insurance should never be raised, and the new jury would not be directly influenced either way. They won’t know about the first trial or the appeal. That would, of course, be counting on the ability to assemble a jury full of people who don’t know anything about this case, the appeal, or anything else. That would be the goal, and a new trial would be held that is fair and just to both sides.

Thorpe: The unjust enrichment verdict was reversed in Minnesota. Are there lessons for Michigan?

Mersino: Certainly. While this was a federal case in Minnesota and the Unjust Enrichment claim was overturned under Minnesota law, the same outcome (I believe) should happen in any court under any state law. One of the things that we were able to do in our brief was to research the question of whether Unjust Enrichment damages were ever held to be proper in a defamation case in every federal and state jurisdiction in the country. We cited cases from nearly every federal circuit court, numerous federal district courts, and many different state courts that all fell on the same side of the issue, holding that the Unjust Enrichment damages would be improper. In fact, our brief even cited case law from Michigan. The 8th Circuit, in reaching its opinion in this case, even cited some of the cases we had found and argued in our brief.

In the end, the 8th Circuit agreed with our analysis that there has not been one case in the country—ever—to award Unjust Enrichment damages in the way that the trial court did in a defamation case like this, and the Court of Appeals overturned the entire $1.35 million award. The Court held that because Ventura had an adequate remedy for his defamation claim (that is, the damages he allegedly sustained to his reputation), there was no reason that Kyle’s estate should also have to pay him any of the profits from the book. If a similar issue were to be raised under Michigan law, I would make the exact same arguments and believe that it should turn out the exact same way.

Thorpe: What might be next?

Mersino: We will have to see, and that is up to Jesse Ventura. The defamation claim can be retried, he can attempt to appeal further, or perhaps he may determine it is better to put this all behind him. We will have to wait and see.